Vermont Supreme Court Says The Scent of Marijuana is Not Grounds for Search and Seizure

It’s a known fact to those pushing for cannabis legalization that there are a number of problems when it comes to how the criminalization of cannabis has been enforced. All around the country people are arrested daily for cannabis possession, with a large majority of those people being minorities. This is one of the biggest reasons that so many individual municipalities have moved towards decriminalization to help end the unnecessary arrests.

After two years, the Vermont Supreme Court reached a unanimous decision that could drastically reduce the number of people arrested on cannabis possession – the smell of marijuana is not grounds for search and seizure.

“Police have had enormous discretion to stop and search motorists, including for erroneous or pretextual reasons and on the basis of implicit or explicit bias,” said Lia Ernst, the ACLU attorney who argued the case. “In ruling that police can be liable for such acts, this decision sends a clear message — no one is above the law, and if police make bad stops, they can and will be held accountable.”

This comes after Gregory Zullo was pulled over because snow was covering the registration sticker on his license plate – which is not a traffic violation. His vehicle was then seized by State Trooper Lewis Hatch, who justified the search and seizure by claiming to have smelled marijuana. In Vermont, neither the license plate issue nor the marijuana are illegal – so Zullo sued and the court ruled in his favor.

The National Association of Criminal Defense Lawyers (NACDL), which submitted a joint amicus brief in 2018 in support of Zullo, lauded the decision: “All people in this country should be able to trust that law enforcement is not targeting them for any improper purpose. And now the Vermont Supreme Court has held that the people of Vermont have a path to vindicate their rights should they be so violated.”

Originally, the state court had dismissed the lawsuit, claiming the officer was immune from being sued. However, the state high court reinstated the case, deciding that officers could be sued for discriminatory searches and seizures in violation of the Vermont Constitution.

In a time when cannabis is becoming legal for recreational use in more and more states – including Vermont – it makes sense that the scent of marijuana, especially a faint scent, should not be enough to warrant a search. In many cities and states, marijuana is now only a ticketed offense, with the intention of reducing the number of arrests and hours wasted due to criminalization.